Whittington v. State

669 N.E.2d 1363 (Ind., 1996)


Appellant was prosecuted for battery and disorderly conduct from an event where he allegedly spoke loudly towards officers during an investigation. Appellant apparently struck his pregnant sister in some fashion while she and her boyfriend were attempting to restrain him. An officer was called and an ambulance arrived. Meanwhile, appellant and the boyfriend got in a heated argument in front of officers; and the two were separated. During the separation appellant continuously made loud noises and was swearing. When he continued his behavior, the officer arrested him for disorderly conduct. He was charged with disorderly conduct, among other charges, and appealed arguing that his speech was protected.


Whether swearing at an officer constitutes disorderly conduct under Indiana code and the MPC.


“A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he… makes unreasonable noise. … Public means affecting or likely to affect persons in a place to which the public or a substantial group has access…”

“… if a claimant demonstrates that the right to speak clause is implicated, he or she retains the burden of proving that the state could not reasonably conclude that the restricted expression was an abuse.”


It is important to note that the IN statute is different from the MPC, in that the intent applies to making unreasonable noise – not necessarily the effect of the noise. In Price, the court held that the level of noise is unreasonable given the relevant circumstances. Therefore, the statute is volume specific – not content specific.

The court must answer whether the state action has limited appellants “expressive activity” and if so, whether the his expressive activity “constituted an abuse of the right to speak.” The IN. constitution states – “for abuse of that right, every person shall be responsible.” The state constitution, therefore, prohibits speech that constitutes an abuse of the right to speech. The purpose of the provision, therefore, is to ensure more speech by restricting speech which can be abusive of the right to speak. One category of protected speech is political speech. Political speech occurs when the speech in meant to protest state action. Conviction for unreasonable noise requires proof of the unreasonable noise before and after a warning occurs.

Appellant’s expressive activity was restricted; but he did not sufficiently prove that his speech wasn’t an abuse of expressive activity – his speech was not political. His comments were mostly about private individuals and not police authorities. He has not “negated every conceivable basis for the state action in his case.” The noise could have agitated or interfered with officer and medical staff’s ability to do their jobs. The volume of the noise likely made it “highly annoying” for all to do their jobs.


Speech covered by provision of IN constitution should extend to all liberties in bill of rights: religion, scientific, etc.


Would affirm convection “because it does not violate the plain and ordinary meaning of Article 1, Section 9.” “I would find the rights of free expression to have been abused when exercised contrary to laws prescribing reasonable time, place, and manner limitations.”

Comments are closed.